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Cyrus Farivar - Jul 7, 2015 6:10 pm UTC

Further ReadingFormer Goldman Sachs programmer convicted of stealing code in second trialThe New York State Supreme Court has overturned the second conviction of Sergey Aleynikov, a former programmer accused of stealing high-frequency trading source code after leaving Goldman Sachs in 2009.

The Russian-American programmer, who was featured in the book Flash Boys, was previously convicted in federal court in 2010 on one count of stealing trade secrets and one count of transporting stolen property.

He was released from prison when the United States Court of Appeals for the Second Circuit overturned the conviction in 2012. The appeals court wrote that Aleynikov did not steal anything physical when copying the source code, because it was done over the Internet and did not violate the National Stolen Property Act.

After that ruling, state charges were brought, this time under New York Penal Code § 165.07 Unlawful Use of Secret Scientific Material. That legislation was written in 1967 and specifically refers to “a tangible reproduction.” Aleynikov was initially found guilty by a New York jury trial in May 2015.

The New York Supreme Court largely agreed with the federal appellate court, finding:

Defendants cannot be convicted of crimes because we believe as a matter of policy that their conduct warrants prosecution. We cannot ignore key terms like "tangible" and "appropriate" because they make it impossible to convict someone we believe engaged in wrongdoing. The demands of the digital age will doubtless require further refinement of our criminal laws. But it is the job of the courts to apply the laws that exist. For all of those reasons, Defendant's motion for a trial order of dismissal with respect to counts one and two of the indictment is granted.

The New York Times noted that prosecutors may appeal the decision further. Despite the New York Supreme Court’s confusing name, it is not the court of last resort—that distinction goes to the New York Court of Appeals.

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